Pat Kane: Don’t kill off all the lawyers just yet – technology will catch up with them as well

‘The first thing we do, let’s kill all the lawyers.” That’s what the thuggish Dick proposes in Shakespeare’s Henry VI as a means of improving society. And perhaps one way to hasten their end is the sight of lawyers making a killing.

This week in Scotland has provided quite a spectacle of all that. The new Dean of the Faculty of Advocates, Gordon Jackson QC, suggested that independence might allow Scots lawyers to “grab some of that [legal] practice cake” from London, which usually secures the major litigations.

Various political gobs on sticks lined up to scoff at (or in the SNP speaker’s case, neatly evade) the idea that “lining the pockets of lawyers” was “a valid reason to sever ties with the rest of the UK”.

Loading article content

At the same time, we discovered that Donald Findlay QC was the Scots advocate who earned most legal aid fees last year: £288,000, up by 11 per cent, all paid for by us. Findlay (whose public persona has mixed up sectarian headline-grabbing, emotional vulnerability and an unbending commitment to Scots law) will also be defending the ex-Rangers director Craig Whyte against fraud charges next April,.

We peer at the behaviour of these larger-than-life defence lawyers as if through a scratchy perspex screen (unless we have need of them, and then it’s a real one). What are they doing in there?

This year Findlay defended (unsuccessfully) one Paul Sands, who had with a few others attempted the killing of two key members of the Ulster Defence Association in Scotland.

For his part, Gordon Jackson has recently tried to get the 27-year sentence for the killer of Asad Shah reduced. His plea was that Tanveer Ahmed had sat and waited for the police to pick him up, as well as admitting his guilt. Others sentenced with similar years had tried to escape capture. The judge, Lord Carloway, brushed Jackson aside.

As a cousin of mine who now sits at the Bar in Edinburgh – and who slogged her guts out to get there – keeps telling me: “This is the thing about being an advocate. You have to accept what and who you’re given. And then pursue the case to the best of your ability.”

I’ve always found court lawyers fascinating in this respect. They have a huge and ongoing intellectual commitment, which often requires a dramatic persona and much chutzpah to get the job completed.

But these powerful personalities must submit themselves to the great body and principles of the law. The right to a fair trial; the presumption of innocence – letting “ten guilty persons escape than that one innocent suffer”, as Blackstone put it.

In a wee country, the total spend on public legal assistance – £137.8 million last year – seems a little eye-popping (though apparently that’s down on the year before). I wonder what a much fairer and more equal society – one that nurtured and developed us properly from the start, that helped us master our extreme reactions – would do to the size of that bill.

Yet there they are – the permanent society of law and lawyers. No matter what other institutions and professions are falling apart or unravelling, the lawyers always seem to be healthily swarming over everything.

In Brexit, it’s lawyers that are effecting the Great Repeal; thousands of EU legal specialists are being desperately recruited by Whitehall. It’s also lawyers that are attempting to halt it – successfully petitioning the High Court to rule that the Westminster Parliament must be able to vote on the triggering of Brexit.

Bewigged judges have appeared like criminals themselves – indeed, “enemies of the people” on the front pages of Brexit-supporting tabloids. This prompted many (on my progressive side, anyway) to clutch their pearls. Look at our independent judiciary being scapegoated! A familiar move in societies that are turning towards authoritarianism.

Yes, worrying, of course. But as we see country after country seethe with anti-elitist energies – which often express themselves by challenging and defying all kinds of expert authority – I’ve been wondering when the law professions and their institutions would start to feel the populist heat.

Until recently, one protection would have been this: it depends whether your society rests on a well-designed and credible constitution. If your country is founded via a body of constitutional law – pulled together by citizens in a forging moment, argued from first principles, referencing the best of global practice – then legal action can be an acceptable and stable way to progress the affairs your nation.

However, as many have noted, the uncodified (and monarchy-tethered) nature of the British constitution means that legal opinion can drastically upset democratic applecarts.

In his republican manifesto The Enchanted Glass, Tom Nairn noted that “anyone who buys an elementary textbook on the British constitution to read it (rather than pray before it) knows that the Crown is a crucial element in constitution, law and government. Were it to disappear, these would require both theoretical and practical reconstruction, not a few adjustments with a spanner.”

“Theoretical and practical reconstruction”, using an expanding toolbox of constitutional politics, is something that we’ve been willing to embrace in recent Scottish history. From the Claim of Right, through various acts of devolution, to two SNP Governments constantly testing the boundaries of Holyrood within the UK. (And with law-trained politicians on all sides pushing this forward).

The Scottish Greens’ Andy Wightman came out with a book a few years ago on the politics and history of land ownership in Scotland, titled The Poor Had No Lawyers (and thus were defenceless against raids by the rich). If the poor didn’t just have lawyers, but were legally skilled themselves, what could they secure?

Independence, the Crash, austerity and Brexit has forced us all to become amateur economists. Perhaps the great effort to break up Scotland’s concentrations of land ownership will generate a wave of ground-level legal activism.

However, a Scotland of constitution-waving, legally-sharpened radicals may not be proof against disaster. Half of America currently trembles at the prospect of its Supreme Court being stacked with ultra-conservative judges, as the consequence of a Trump presidency and two Republican-controlled chambers. This threatens to reverse many liberal advances and freedoms, secured through constitutional case law. Under indy, could a Scottish Supreme Court be similarly captured?

There is one reliable way to kill all (or at least many) of the lawyers, of course – and it’s the same process that will be challenging many other occupations and professions: automation and artificial intelligence.

Richard Susskind, a notable son of Glasgow and the IT advisor to the English Lord Chief Justice, delights in terrifying his colleagues with the march of the machines. He believes law has been locked into human beings (and their massive fees) for too long, and needs to be made cheaply available to the masses.

In his recent book The Future of The Professions, Susskind notes how intelligent search systems now outperform junior lawyers and paralegals in the task of reviewing large sets of documents and selecting the most relevant. A Deloitte report estimates 114,000 UK legal jobs will go in the next 20 years.

“We as a profession have about five years to reinvent ourselves”, said Susskind this April, “to move from being world-class legal advisers to world-class legal technologists”. If you’re a student who thinks that shows like Suits or The Good Wife represents your idea of law, “then don’t go into law”.

Perhaps Susskind is right. The bustling law floors of many an office block may well be darkened, replaced by the blink and hum of vast, inhuman case-law crunchers.

But consider big characters like Findlay and Jackson, or Joe Beltrami before them. Their chief concern is the crooked timber of humanity, precisely at the point the point where it splits and breaks. What algorithm will go down to the cell, as Findlay does every time, to commiserate with the client whose case he just lost?

The machines can munch their way through files and folders. But let the lawyers live, for a little longer at least.

Ipsoregulated

This website and associated newspapers adhere to the Independent Press Standards Organisation's Editors' Code of Practice. If you have a complaint about the editorial content which relates to inaccuracy or intrusion, then please contact the editor here. If you are dissatisfied with the response provided you can contact IPSO here